BODIA v. HAWADIA

124-NLR-NLR-V-16-BODIA-v.-HAWADIA.pdf


( 468 )
Present: De Sampayo A.J.
BODIA v. HAWADIA.
157—C. R. Kandy, 21,131.
Mortgage—Sale by mortgagor after mortgage—Action against mortgagorwithout making purchaser party—Subsequent action against thepurchaser—Civil Procedure Code, ss. 643,644.
A mortgaged his land to B in 1907 and sold it to C in 1911.Neither B nor C registered their addresses in terms of section 643.B sued on his mortgage bond in 1912; but did not make C a partyto the action. When the land was seized on the mortgage decree,C claimed the land- On the claim being upheld, B brought thepresent action against C to have the land declared bound andexecutable.
Held, that B’s failure to make C a party to the mortgage actionwas not a bar to his bringing the present hypothecary actionagainst C.
rpHE facts appear from the judgment.
Balasingham, for the defendant, appellant.—The plaintiff did notjoin the defendant as a party in the mortgage 'action. It is notopen to the plaintiff to bring a separate action for getting a declara-tion that the land, which defendant brought subsequent to themortgage, was liable to be sold for the realization of the mortgage
1918.
1918.
Bodta 9.Hawadia
( 464 )
debt. Lascelles G.J. held in Bamanathan Ghetty v. Gassim 1 thaj* amortgagee who did not give notice to the puisne incumbrancers jinthe mortgage action was not entitled to bring a hypothecary actionsubsequently against the puisne incumbrancer.
[De Sampayo A. J.—In that case the puisne incumbrancer hadregistered his address as required by the Code.] The case was notdecided on the footing that as the puisne incumbrancer had regis-tered his address he should have been given notice in the mortgageaction. The ratio decidendi was that as the mortgagee had not givennotice in the first action on the mortgage bond against the mortgagor,it was not open to him to bring a subsequent action to remedy hisomission. Lascelles C.J. said: “ To allow a mortgage to neglectthis procedure (the object of which is to avoid expense and litigation)would be to drive a coach and six through the statutory provisionsof chapter XLVI. of the Code.”
Moreover, where the primary mortgagee has himself not registeredhis address, it does not matter whether the puisne incumbrancerhas or has not registered his address. Where the primary mortgageehas not registered his address, he cannot complain that a puiBneincumbrancer has not registered his. In Elyatamby v. Valliammai 2both the deeds were not registered. The Supreme Court held thatthere was-no obligation on the part of the puisne incumbrancer toregister his deed or address unless the primary mortgagee hadregistered his address. The decision in Elyatamby v. Valliammai2 isa binding authority; the facts of that case are on all fours with thefacts of the present case. It was held in that case and in the earliercases that, even where both parties had failed to register theiraddresses, the primary mortgagee should give notice to the puisneincumbrancer if he wants to get a decree to bind him. The primarymortgagee cannot plead his own default as an excuse for not follow-ing the imperative provisions of the law. It is not open to theprimary mortgagee to get a new hypothecary decree against asubsequent purchaser. Such an action has been held to be barredby section 34 of the Civil Procedure Code. Counsel also citedPeiris v. Weerasinghe,8 Weerappa Ghetty v. Arunaselam Ghetty.4
[De Sampayo A.J.—In all these cases the contest was between apurchaser at a Fiscal ’&sale under the mortgage decree and a purchaserunder a private conveyance after the mortgage. In this case theplaintiff seeks to get a hypothecary decree against the defendantbefore the execution of the mortgage decree. ] In Ramanathan) Chettyv. Oaesim 1 the plaintiff sought to get a hypothecary decree againstthe lessee, but the Supreme Court held that the action did not lie.
This is an action under section 247 of the Civil Procedure Code,and the rights of the parties should be decided as on the date of theclaim.
i (1911) U N. If. R. 177.a 11918) 16 N. L. R. 910.
a (1900) 9 N. L. R. $69.« (1909) 12 N, L. R. 139.
1918.
( 465 )
1 w. de Silva, for the respondent.—The present action is to geta hypothecary decree. When neither party has registered hisaddress, the sections of the Civil Procedure Code do not apply. Thecase is governed by the Roman-Dutch law, and not by the Code.
Cur. adv. vult.
June 19, 1913. De Sahpayo A.J.—
The facts with which this appeal is concerned are as follows.Eirihatana and Ealu, being the owners of a certain land, mortgagedit by bond dated September 28, 1907, and registered on October 5,1907, to the plaintiff. On December 13, 1911, the bond was put insuit against the mortgagors in action No. 20,542, and a mortgagedecree was obtained on May 17, 1912. When the property wasseized in execution of the decree, it was claimed by the defendant byvirtue of a deed of sale dated February 2, 1911, and registered onAugust 28, 1911, executed by Eirihatana and Ealu. The claimhaving been upheld, the plaintiff has brought the present action tohave it declared that the property was bound and executable forthe debt due to the plaintiff by Eirihatana and Ealu. This is infact a hypothecary action by the mortgagee against a subsequentpurchaser, and the Commissioner has given judgment for theplaintiff.
It is argued in appeal that plaintiff, having failed to register anaddress in terms of section 644 of the Civil Procedure Code, andhaving also failed to join the defendant as a party in the previousaction, can no longer bring any hypothecary action against thedefendant. In support of this contention three decisions of thisCourt were cited to me. The first of these is Petris v. Weerasinghe.1I do not see how that decision is applicable to the present case. Itwas there held that in order to entitle a mortgagee to the benefitsprovided by section 644 he must, as a condition precedent, havehimself complied with the requirement of the first proviso to thatsection. The plaintiff is not seeking to claim any benefit underthat section; he does not say that the mortgage decree in the previousaction is binding on the defendant; on the contrary, he is asking fora new hypothecary decree against the defendant. I may note furtherthat there the contest was as to the title to the land between aprivate conveyance from the mortgagors and a Fiscal’s transferfollowing upon a sale in execution of the mortgage decree, whereashere the plaintiff is still mortgagee, and seeks to enforce the mortgageagainst a subsequent transferee. Peiris v. Weerasinghe1 was followedin Weerappa Ghetty v. Arunaselam Chetty 2 where the facts and natureof the case were similar. The next decision cited is RamanathariChetty v. Gassim* There also the plaintiff had become purchaserof the property under his own writ, and the ratio decidendi of the i
i (1906) 9 N. L. R. 869.3 (1909) 12 N. L. R. 189.
« (1911) 14 N. L. R, 177.
i 35-'
1918.
Db Samfayo
A.J.
Bodia 9.Hwoadia
( 466 )
decision, if I read the judgment rightly, is that the plaintiff hadpurchased the lapd subject to the interest of the defendant, whowas a lessee, and it was too late to bring a hypothecary action afterthe plaintiff had failed to get an effective decree against the defendantin the first action. One other fact which distinguishes that case fromthis is that the defendant there had in fact registered an addressin terms of section 648 of the Code, while in this case neither partyregistered any address at all. Counsel lastly .cited the unreportedcase 222 Inter., D. C. Jaffna, 7,995.1 There also the mortgagee .had purchased the property under his own writ, and the question wasone of title between him and a private alienee. It is to be observedthat in each of these cases, with the exception of Bamanathan Chettyv. Cassim2 the mortgagee or the purchaser at the sale under themortgagee’s writ had to depend on the binding character of themortgage decree as against his opponent, who was no party to theaction, and the gist of the whole matter appears to me to be containedin these words of Wood Renton J. in the Jaffna case above referredto (I take the liberty to italicize the words I wish to emphasize):
“ Compliance by the mortgagee with the requirements of thesesections, i.e., sections 643 and 644 of the Civil Procedure Code,is a condition precedent to a puisne incumbrancer being boundeither directly or indirectly by the decree in the mortgage action.9*The use of the expression " directly or indirectly '* in this passage hasreference to an argument that the purchaser under the mortgagedecree, even if he had no title against the puisne incumbrancer,was at least entitled to the payment of the amount of the mortgageas impensm utiles. The case of Bamanathan Chetty v. Caseim* asI have indicated, forms an exception to this series of cases, in thatthere the mortgagee, though he had purchased the property,attempted to get a fresh hypothecary decree against the lessee forthe balance amount of the mortgage decree which remained stillunsatisfied. This was disallowed by Lascelles C.J. (1) because theplaintiff had not protected himself by the procedure laid down inchapter XLVI. of the Civil Procedure Code, and (2) principallybecause the mortgage was extinguished by his becoming owner; andby Middleton J. (1) because the lessees having registered an addressthe plaintiff had failed to cite them in the mortgage action, and (2)because section 34 of the Civil Procedure Code barred the secondaction.
It will be seen that the ratio decidendi in none of these decisionsapplies to this case. If it did, I would feel bound to follow them,whatever my own opinion might be. I think I am free to decidethis case on my own view of the law. In my opinion sections 643.and 644 of the Code do not have the effect of doing away altogetherwith the common law and do not impose a new burden on a mortgagee,but rather afford certain facilities in obtaining a mortgage decree.
1 8. C. Min., Mar. 20, 1918.2 11911) 14 N. L. R. 177.
1918,
( )If neither party has observed the provisions of those sections, theyare thrown back upon the common law, which allows a separatehypothecary action against a puisne incumbrancer. In JRamo-nathan Ghetiy v. Gassim 1 the learned Chief Justice allowed that theactio hypothecaria was still available, and that the plaintiff mighthave joined the lessees in his action. That being so, why shouldnot the actio hypothecaria be brought afterwards ? His Lordshipthought that it could not be so brought, but I think that opinionwas only obiter.
I think this action was well brought, and the judgment appealedfrom is right. I dismiss the appeal with costs.
Db 8ampayoA.J.
Bodia o.Eaxoadia
Affirmed.